Arguments Against Missouri Nullification Bill Fail

During the regular session, the Missouri legislature passed a Second Amendment Protection Act that would nullify unconstitutional federal actions violating the right to keep and bear arms. Gov. Nixon vetoed it. The legislature will have a chance to override in September. The Joplin Globe published the following guest column by Tenth Amendment Center national communications director Mike Maharrey addressing two of the most common arguments against the bill.

In a few weeks, the Missouri legislature will consider overriding Gov. Jay Nixon’s veto of a bill nullifying federal actions violating the Second Amendment.

As the debate rages, opponents of HB436 make two fallacious arguments. First, they argue the Constitution’s supremacy clause renders HB436 unconstitutional. Second, they paint nullification as a discredited tool primarily used unsuccessfully to fight desegregation.

Nixon cited the supremacy clause as his reason for vetoing HB436.

“To me, it is not a gun issue, it is a law issue,” he said.

The supremacy clause affirms that the Constitution and all laws made “in pursuance thereof” stand supreme. But Nixon and other federal supremacists pretend the words “in pursuance thereof” don’t exist. They assume every federal law stands supreme simply by virtue of passage. The Nixon version of the supremacy clause reads, “This Constitution, all laws made in pursuance thereof and any other old act Congress, the president or the federal courts authorize stands supreme.

Alexander Hamilton emphatically rejected this idea in Federalist 33.

“It will not follow from this doctrine [supremacy] that acts of the large society which are not pursuant to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies [states], will become the supreme law of the land. These will be merely acts of usurpation, and will deserve to be treated as such.”

Nixon would undoubtedly counter that the Supreme Court determines constitutionality. But how can we expect a government defining its own authority to remain limited? How can Nixon say he supports the Second Amendment, an explicit limit on federal power, and then turn around and insist the federal government gets to determine the extent of that limitation? Thomas Jefferson recognized the impossible nature of this position in 1798.

“The government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers.”

As Madison pointed out, it logically follows that the people of the states ultimately determine the limits on federal power.

“The States then being the parties to the constitutional compact, and in their sovereign capacity, it follows of necessity, that there can be no tribunal above their authority, to decide in the last resort, whether the compact made by them be violated; and consequently that as the parties to it, they must themselves decide in the last resort, such questions as may be of sufficient magnitude to require their interposition.”

Even so, nullification opponents continue to paint it as the failed strategy of racists.

“Historically, nullification has not gotten off the ground,” University of Missouri associate political science professor Justin Dyer told the Joplin Globe, citing desegregation cases from the 20th century.

But nullification did get off the ground in the years leading up to the Civil War. It was effectively used by northern states to block federal fugitive slave acts. Personal Liberty Laws passed in the north primarily involved noncooperation, denying use of state or local facilities to slave catchers and punishing state officers who cooperated. Some liberty laws guaranteed jury trials to accused fugitives. A few states took things a step further. Vermont law subjected fugitive slave hunters to arrest.

“Every person who shall deprive or attempt to deprive any other person of his or her liberty, contrary to the preceding sections of this Act, shall, on conviction thereof, forfeit and pay a fine not exceeding two thousand dollars nor less than five hundred dollars, or be punished by imprisonment in the State Prison for a term not exceeding ten years.”

This included federal deputy marshals who were often involved in fugitive slave rendition.

These northern efforts defied an 1842 Supreme Court decision, and were so effective that several southern states cited northern nullification (and they used that word) in their declaration of causes for secession.

Clearly, nullification more than “got off the ground.”

Nullification stands historically, philosophically and morally as the rightful remedy when federal acts violate the Constitution. The Missouri legislature should override Nixon’s veto without hesitation.